Factual and Procedural Background
The judgment concerns judicial review proceedings relating to the quashing of an Aquaculture Licence and a Foreshore Licence issued for a salmon farm at a location in Bantry Bay. The licences were challenged by multiple applicants including Plaintiff A and Plaintiff B, against respondents including Company A (the Aquaculture Licences Appeals Board), the Minister for Agriculture, Food and the Marine, the Minister for Environment, Climate and Communications, and the Attorney General. The proceedings involved three separate but unitary trials consolidated into a 15-day hearing. The court quashed the licences due to deficiencies in Appropriate Assessment (AA) Screening, Environmental Impact Assessment (EIA), and reasoning related to compliance with the Water Framework Directive (WFD). The court also found an unreasonable delay by Company A in conducting AA Screening. The licences were remitted for re-decision by the relevant authorities. The present ruling addresses the costs of these proceedings.
Legal Issues Presented
- Whether the Aquaculture Licence and Foreshore Licence should be quashed due to inadequate AA Screening, EIA, and reasoning under WFD compliance.
- Whether Company A's delay in conducting AA Screening was unreasonable and warranted relief.
- Whether costs should follow the event in judicial review proceedings subject to section 50B of the Planning and Development Act 2000, and if so, in what terms.
- The applicability and extent of Veolia orders (costs orders reducing recovery for unsuccessful grounds) in complex environmental judicial review proceedings.
- The impact of the unitary trial format on the allocation and assessment of costs.
- The effect of avoidably unclear legislation on costs allocation.
- Whether no foal no fee or pro bono arrangements should influence costs awards under the Not Prohibitively Expensive (NPE) rule.
Arguments of the Parties
Plaintiffs' Arguments
- Plaintiffs argued for full recovery of their costs on the basis that they succeeded in quashing the licences, which was the primary relief sought.
- They opposed any Veolia order that would reduce their costs recovery and suggested any deduction should not exceed 20%, allowing them to recover at least 80% of their costs.
- They contended that the lost grounds raised were mostly reasonable and not unmeritorious, given the complexity of the case and the nature of environmental litigation.
- They submitted that the issue lost relating to section 13A(6) of the Foreshore Act 1933 derived from badly drafted legislation, justifying a more lenient approach to costs.
- They argued their attendance at the entire unitary trial was justified due to the overlapping and intertwined issues.
- They maintained that no foal no fee or pro bono arrangements should not weigh significantly against their costs recovery under the NPE rule.
Company A and State Respondents' Arguments
- Company A accepted that Plaintiffs should recover their costs but proposed Veolia orders reducing costs recovery by 50% on the basis that Plaintiffs raised numerous unmeritorious grounds that materially increased litigation costs.
- The State agreed with Company A on costs for one Plaintiff (Plaintiff B) but opposed any costs order against it for the other Plaintiff (Plaintiff A).
- Both Company A and the State did not seek to set off their own costs against Plaintiffs' awarded costs.
- Company A argued that the attendance of Plaintiffs at the trial was unnecessary at times and that the overnight transcript facilitated selective attendance, suggesting costs for attendance should be reduced.
- Company A contended that no foal no fee arrangements or pro bono representation should be taken into account in reducing costs awards.
- The State submitted that the lost issue on the interpretation of section 13A(6) of the Foreshore Act 1933 added to the trial length and costs, supporting a Veolia order.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Veolia Water v Fingal County Council (No 2) [2007] 2 IR 81 |
Principles governing costs orders where a successful party raised unmeritorious grounds that materially increased costs (Veolia orders). |
Used as the primary framework for assessing whether and to what extent to reduce Plaintiffs’ costs recovery due to unsuccessful grounds. |
| Godsil v Ireland and the Attorney General [2015] IESC 103 |
Affirmation that costs generally follow the event as the overriding principle. |
Supported the principle that costs follow the event, subject to judicial discretion. |
| Connelly v An Bord Pleanála [2018] IESC 36 |
Emphasized the importance of the overall result in costs decisions and discouraged "throwing the kitchen sink" of unmeritorious grounds. |
Guided the court’s holistic approach to costs, balancing discouragement of unmeritorious points with fairness to successful applicants. |
| Flannery v An Bord Pleanála [2022] IEHC 327 |
Discussed the application of the NPE rule and the special context of environmental litigation in costs awards. |
Referenced in relation to the NPE rule and public interest in environmental litigation costs. |
| Jackson Way Properties Ltd v Smith [2023] IECA 234 |
Considered reasonableness of raising unsuccessful grounds and the application of Veolia principles on a common-sense, holistic basis. |
Supported the court’s view that unsuccessful grounds must be reasonably raised to avoid Veolia deductions. |
| Little v The Chief Appeals Officer [2024] IESC 53 |
Considered the exercise of discretion in costs awards and the impact of unclear legislation on costs liability. |
Informed the court’s assessment of the avoidably unclear legislative provisions affecting costs. |
| Kemper v An Bord Pleanála [2022] IEHC 25 |
Clarified jurisdiction under section 50B PDA 2000 for costs and the application of Veolia principles within that statutory framework. |
Confirmed that costs awards derive from s.50B PDA 2000 and that Veolia principles apply in this context. |
| MD v ND [2015] IESC 66 |
Discussed the discretionary nature of Veolia orders and the methods of applying percentage deductions. |
Supported the court’s broad-brush approach to quantifying Veolia deductions. |
| Higgins v Irish Aviation Authority [2020] IECA 277 |
Considered the reasonableness of raising unsuccessful grounds and their impact on costs. |
Supported the view that unsuccessfully raised grounds do not necessarily warrant costs reductions if reasonably pursued. |
| Reid v Bord Pleanála [2024] IEHC 27 |
Discussed the appropriateness of Veolia orders in relation to trial length and unsuccessful grounds. |
Supported limiting Veolia orders to genuinely long trials significantly lengthened by lost issues. |
| Sherwin v An Bord Pleanála [2024] IESC 32 |
Reiterated that Veolia orders should be very much the exception and applied only where unsuccessful issues materially increased costs. |
Guided the court’s cautious approach to making Veolia orders. |
| Friends of the Irish Environment v Legal Aid Board [2020] IEHC 454 |
Addressed the Not Prohibitively Expensive (NPE) rule and its impact on costs awards in environmental litigation. |
Used to assess the impact of no foal no fee arrangements on costs awards. |
| Atlantic Diamond Limited v An Bord Pleanála [2021] IEHC 322 |
Recognized the public interest role of environmental litigants in representing the environment. |
Supported the court’s emphasis on public interest considerations in costs decisions. |
| Jennings v An Bord Pleanála [2022] IEHC 249 |
Affirmed the importance of public interest in environmental litigation and costs considerations. |
Reinforced the court’s approach to environmental litigation costs. |
| Edwards v Environmental Agency Case C-260/11 [2013] ECR I-000 |
Recognized the importance of public participation in environmental law and costs protections. |
Supported the court’s recognition of the role of environmental NGOs and public interest in costs. |
| Klohn v An Bord Pleanála [2021] IESC 51 |
Discussed the NPE rule and access to justice in environmental litigation in relation to costs. |
Informed the court’s consideration of adequacy of arms and costs in environmental cases. |
Court's Reasoning and Analysis
The court began by acknowledging the primary relief sought and obtained by the Plaintiffs: the quashing of the Aquaculture and Foreshore licences. It recognized the statutory framework under section 50B of the Planning and Development Act 2000, which generally requires each party to bear its own costs unless the applicant succeeds in obtaining relief, allowing costs to follow the event to the extent of success.
The court reviewed the Veolia principles, which permit costs reductions for successful parties who raise unmeritorious grounds that materially increase the costs of litigation. The court emphasized the need for a reasoned, holistic approach rather than a minute, granular analysis of costs attributable to individual grounds. It noted that the litigation was complex, lengthy, and involved intertwined issues across three consolidated cases in a unitary 15-day trial.
The court found that although Plaintiffs lost on some grounds, most of these were reasonably raised given the complexity of environmental law and the lengthy licensing process. Two exceptions were noted regarding certain bias allegations and unpleaded points. The court also found that some lost points derived from avoidably unclear legislation, justifying a more lenient costs approach.
The unitary trial format, chosen by Company A, was significant in the court’s analysis. The court held that Plaintiffs’ attendance throughout the trial was justified given the overlapping issues and that Company A must bear any disadvantages arising from its choice of trial format. The court rejected arguments that Plaintiffs’ costs should be reduced for attendance at days primarily addressing other applicants’ issues.
Regarding the NPE rule and no foal no fee arrangements, the court acknowledged that while such arrangements exist, they do not significantly affect whether costs should be reduced under Veolia principles. The court recognized the public interest in environmental litigation and access to justice, cautioning against overly penalizing applicants for raising multiple grounds in complex cases.
The court concluded that a Veolia order was appropriate given the length and complexity of the trial and the presence of lost grounds, but that the order should be moderated by the public law and environmental context, the unitary trial format, and the reasonableness of the Plaintiffs’ conduct. Applying a broad-brush approach, the court determined that Plaintiffs should recover 80% of their trial costs and instruction and brief fees.
The court also provisionally made no order regarding the costs of the costs hearing itself, allowing liberty to apply for a different order within 14 days. The court invited the parties to liaise to settle the terms of the costs order to assist the registrar.
Holding and Implications
The court's final decision is as follows:
1. Costs Orders: Plaintiffs shall recover their full pre-trial costs in respect of the proceedings. For trial costs, a Veolia order shall apply, with Plaintiffs entitled to recover 80% of their trial costs and related fees, reflecting a broad-brush balancing of the complexity, reasonableness, and public interest factors.
2. Costs Against Respondents: Company A and the Minister shall bear the costs awarded to Plaintiffs, with Company A and Company B jointly and severally liable for certain costs related to specific procedural motions. The State shall not pay costs to Plaintiff A as no relief was granted against it in that case.
3. No Costs Orders: No order as to costs shall be made in respect of Inland Fisheries Ireland’s proceedings, as it sought no costs. No costs orders shall be made for or against Company B except as noted.
4. Trial Format Implication: The choice by Company A of a unitary trial format imposes a cost risk borne by it, including the necessity for Plaintiffs to attend the full trial and recover costs accordingly.
5. Public Policy and Environmental Litigation: The court emphasized the importance of access to justice in environmental matters and cautioned against Veolia orders that might unduly discourage legitimate public interest litigation.
6. Costs Hearing and Order Finalization: No provisional order as to the costs of the costs hearing was made, with liberty to apply. Parties are encouraged to cooperate to draft the final costs order.
The ruling has the direct effect of awarding substantial costs to Plaintiffs while moderating full recovery through a Veolia order reflecting unmeritorious grounds. It reaffirms the principle that costs follow the event in environmental judicial review subject to statutory and public interest considerations. No new precedent was set beyond applying established principles to the facts of this complex, multi-party, unitary trial.